August 10, 2011

Categories:

Federal prosecutors want permission to introduce evidence that the public will not see and to use screens to shield the identities of some witnesses during the upcoming trial of former CIA officer Jeffrey Sterling, who is accused of leaking top-secret information to a New York Times reporter.

In a court filing late Tuesday, prosecutors said the unusual measures are needed to safeguard national security secrets and to assure the safety of witnesses who worked undercover as officers or agents for the U.S.

"In light of national security, counterintelligence, and personal safety concerns, the government asks that some of those witnesses be referred to throughout the public proceedings by the initial of their true last name (e.g., Mr. D. for John Doe), and that a screen be used to prevent the identities of several of those current or former officers from being revealed to the public," prosecutors said in the motion submitted to U.S. District Court Judge Leonie Brinkema in Alexandria, Va.

Sterling faces 10 felony counts relating to allegations that he told Times reporter James Risen about Operation Merlin, a CIA effort to transmit flawed nuclear weapon designs to Iran. In his 2006 book, "State of War," Risen said the Russian defector to the U.S. that the CIA used to convey the information to Iran actually pointed out the flaws to the Iranians. Prosecutors have said aspects of Risen's account are false but they have not been specific.

Sterling's lead defense attorney, Ed MacMahon, bridled at the prosecution requests to prevent the public from seeing some witnesses and evidence at the trial, which is currently set for Oct. 17. "Sterling's entitled to a public trial and we're going to do everything we can to make sure he actually gets a public trial and not one controlled by the CIA," MacMahon said in a brief interview Wednesday.

The Sixth Amendment to the U.S. Constitution guarantees defendants the right to a public trial and to confront witnesses against them. However, judges have on some occasions allowed use of nonpublic evidence, pseudonyms, screens or even disguises for witnesses.

One of the most controversial techniques proposed by the prosecution, the so-called silent witness rule, allows the judge, the prosecution, the defense and the jurors to see a document while a witness is being questioned about it. Defense lawyers and press advocates have complained that the technique amounts to secret testimony because the jury is effectively receiving evidence to which the public has no access.

Defense attorneys have also complained that the secrecy measures, when used at trial, send a not-so-secret signal to jurors that the court has concluded that the matters at issue involve national security secrets — effectively encouraging jurors who must decide that issue to reach the same conclusion.

Prosecutors also revealed Tuesday that the Russian defector, referred to in court papers as "Human Asset No. 1," may be called as a witness at Sterling's trial. In the court filing (posted here), prosecutors said they are likely to request that his identity and name be protected through use of the same techniques.

Prosecutors said they expected the use of the silent-witness procedure would occupy only about 40 minutes of questioning during the trial. If the judge opposes using such a procedure, prosecutors asked that she close the courtroom altogether and release a transcript of the testimony after it has been edited to remove classified information.

The same prosecutor who is handling Sterling's case, William Welch, recently proposed using the silent-witness rule as well as a series of codes at the trial of a former National Security Agency staffer who faced leak-related charges. The judge in that case rejected that approach, according to lawyers involved. The case was settled through a plea bargain and never went to trial.

In 2007, a federal judge ruled against the bulk of the government's request to use the silent-witness procedure as well as secret recordings at the trial of two pro-Israel lobbyists accused of obtaining and disclosing classified information. The judge said he might allow the procedure on a document-by-document basis. That case was dropped by the Justice Department in 2009.

During a 2006 trial for alleged Hamas operatives in Chicago, the judge closed the courtroom as members of Israel's secretive Shin Bet security service testified in the case. The press and public were permitted to hear the proceedings from a nearby room.

Brinkema ruled late last month that prosecutors cannot require Risen to testify about his confidential sources. It is unclear whether the government will seek to appeal her ruling.